Today in 1974: Congress enacts amendments to the Freedom of Information Act over President Ford’s veto

November 21, 2014

Today in Legal HistoryThe elections of earlier this month served to remind us of the obstinate political gridlock that is preventing Congress from being productive in any sense.

It may not even seem believable that, at one time, Congress was so united behind a common purpose – a purpose also broadly supported by the American public – that both parties worked together to overwhelming pass legislation over a presidential veto.

Such an incident did indeed occur, and it was 40 years ago today, when Congress overrode President Gerald Ford’s veto of the 1974 amendments to the Freedom of Information Act (FOIA) on November 21, 1974.

This isn’t the first time that FOIA has been the subject of our Today in Legal History series; last year, we marked the 46 year anniversary of the law’s taking effect, and even at the time, there was presidential opposition to the bill (President Lyndon Johnson almost certainly would have vetoed the bill had a congressional override not have been all but assured).

What was it about these amendments that prompted Ford’s veto and Congress’s override of that veto?  To understand, we have to look at the events that transpired between the short, seven year period between when the original FOIA took effect and when the amendments were passed over Ford’s objection.

Specifically, it was the Watergate scandal and the accompanying bureaucratic resistance to FOIA that prompted Congress to review the effectiveness of the law in a series of oversight hearings from 1972-1974.

These hearings revealed that federal agencies subject to the FOIA would regularly engage in a variety of tactics to delay, deny, or otherwise obstruct FOIA requests.  Some of these tactics included charging as much as $1 a page (over $5 in 2014 values) for copying documents, long delays in responding to document requests, and burdensome and costly legal remedies for appealing administrative denial of requests.

Agencies would also engage in “contamination tactics,” where confidential materials exempt from FOIA requests would be mixed with non-exempt materials in the same folder; the agency would refuse to sort out the exempt materials from the non-exempt, and thus the entire request would be denied.

The 1973 Supreme Court case EPA v. Mink only further enabled this bureaucratic stonewalling: Mink held that an agency’s withholding of documents based on the national defense or foreign policy exemptions of FOIA could be legally supported with a government affidavit that the materials were properly classified.  In other words, the government could exempt information from release under FOIA simply by affirming that the information was correctly classified.

To address these issues, a wide range of revisions to the law were included in the 1974 amendments, including:

  • potential sanctions for “arbitrary or capricious” denials of FOIA requests;
  • uniform agency fees for search and duplication;
  • time limits in responding to requests;
  • the recovery of attorneys fees for requesters who succeed in appealing an administrative denial;
  • the narrowing of exemptions related to national defense, foreign policy, and law enforcement; and
  • in camera review of requested documents by the court (to verify whether the documents were, in fact, properly classified).

Although all of the amendments distressed federal agencies, it was the final one that so disturbed national security advocates within the Executive so as to push for the bill’s defeat.  Notably, Ford’s Chief of Staff Donald Rumsfeld and deputy chief of staff Dick Cheney, along with the head of the Justice Department’s Office of Legal Counsel Antonin Scalia, all fought hard to get Ford to veto the bill.

And veto the bill he did on October 17.  On October 25, Ford submitted suggested changes to the amendments to Senator Edward Kennedy to limit some of the provisions that Ford’s advisors were so concerned about.

But Congress would have none of it, likely prompted by the massive negative reaction by the public to Ford’s veto.  On November 20, the House voted 371-31 to override Ford’s veto, and the Senate followed the next day with a vote of 65-27.  These amendments then became law – giving the FOIA the bulk of the legal force that it currently enjoys even today.

The vote to override Ford’s veto wasn’t very politically risky, however, since the public overwhelmingly disapproved of the veto in the first place.  Thus, Congress was simply reflecting the will of the public in its actions.

Unfortunately, it seems the political gridlock of today – which makes such congressional unity as was seen 40 years ago completely impossible – is also a reflection of the will of the public, meaning that, unless the public can unify behind causes for Congress to act upon, Congress will remain at a standstill.